band did business, and he and the bank's teller, Mr. Freeman, pronounced the paper as being in the handwriting of J. W. Strode. Accordingly they and appellant went before the county court and probated it upon the testimony of Threlkeld and Freeman.

At the first trial in the circuit court about nine witnesses testified in favor of the genuineness of the contested paper, while about the same number testified to the contrary, and in the latter list was Freeman, upon whose testimony the county court probated the will, and who stated in the circuit court that he had changed his mind. Among the list of witnesses who testified for contestant was an expert from Columbus, Ohio, who acknowledged that he was receiving for his services as a witness his expenses and $100 per day. Of the number who testified in favor of the genuineness of the will many of them had seen the decedent not only write his name, but had seen him write other papers and documents besides, while a much less number of witnesses testifying on the other side had seen him do any writing, and perhaps none of them had seen him do more than write his name. So that we feel that we might safely conclude that the witnesses who testified for the contestee showed themselves upon the whole to be the better qualified. The expert, like all of his class, pointed out what he conceived to be discrepancies between the writing forming the will and that of other papers and documents, which were admitted to be genuine and were introduced for purposes of comparison. He particularly dwelt upon the formation of the small letters "b" and "r," and the capital letters "J" and "S" found in the will, and it must be admitted that at least the greater number of those letters found in the will are different from most of them found in the other writings; but in the latter writings there are found some of the same letters of the same form and shape as those found in the will. It is shown that in the will

there are a few misspelled words, but in some of the other genuine writings introduced at the trial there are also found some misspelled words. It is also pointed out by the expert, and perhaps one or two other witnesses for contestant, that the whole writing of the will appears to have been made with a finger movement and to have been nervously written, while, as insisted, the compared papers appear to have been written with a muscular movement and with greater ease. But, be this as it may, we know from observation and experience that no one can produce an exact facsimile of his writing upon any two different occasions. Many elements enter into the creation of the differences, such as the character of paper; whether written with pen or pencil, and, if the latter, whether it was sharp or dull; the position of the writer and of the paper at the time, as well as the physical condition and mental attitude of the writer toward the thing being written.

Of the parol testimony heard upon the first trial, the utmost that may be said is that there was no preponderance either way, which is to ignore the contradictory attitude of the witness Freeman, and the referred-to superior opportunities of contestee's witnesses to become familiar with and know the handwriting of the decedent; and we are by no means prepared to say that the testimony of the expert witness (who, strange to say, did not testify on the last trial, nor was his former testimony offered to be read) resolved the doubt either the one way or the other. Such testimony, as has often been held,

Evidence

is of the weakest weight-expert character, and witness to handwriting. should be received and weighed with great caution. (Kentucky Traction & Terminal Co. v. Humphrey, 168 Ky. 611, 182 S. W. 854), for the witness is not only most generally biased toward the side employing him, but his opinions are based, not upon facts within his knowledge, but upon what may be

Aside from the above testimony, there are some circumstances in the case which point strongly to the genuineness of the contested paper. Perhaps the one of least importance is that on the day it was written the decedent had visited at Winchester, Kentucky, an uncle to whom he was very much attached, and had returned home no doubt with the belief that he would not live, which proved true, because he died the next day. The paper must have been written that night, when the testator was distressed and disturbed, and when he was fully impressed with the fact of the uncertainty of life, since his uncle had been suddenly attacked. He had expressed on a number of occasions his intention to execute a will in favor of his wife, and there is no circumstance shown in the case why he would not want her to share all, or at least the greater portion of, his property, since she had helped him to acquire it. That the wife did not herself forge the will is not only shown by her repeated statements that her husband left no will, but strongly by the fact that she proceeded to wind up his estate as though he was intestate, and actually sold some of the property which the paper, if genuine, devised to her. Surely no other person would forge the paper without the wife's knowledge or consent, and if she is guilty it is passing strange that she would write such a long

document and take unto herself only a portion of her husband's property when only a far less number of words would have been required to devise and bequeath to her all of it. None of the handwriting of appellant was introduced for the purpose of showing any similarity between it and the paper in contest. The irresistible conclusion to be drawn from all the facts and circumstances proven in the case, without taking further time or space to enumerate them, is, according to our view, more favorable to the genuineness of the paper than against it.

Under such circumstances, did the court abuse its discretion in setting aside the first verdict so as to call for the application of the rule of practice supra? Fully realizing that a larger discretion will be allowed the trial court in the granting of a new trial than in refusing one, for the reason and within the limitations hereinbefore stated, we are still called upon to determine what is included within the meaning of the phrase "the exercise of a sound discretion" within that rule, or, conversely stated, what would constitute "an abuse of discretion" so as to authorize this court to direct the reinstatement of the first verdict. Evidently each case must be determined upon its own peculiar facts and circumstances; but, whatever may be the true circumscribing limits of the terms referred to, we are satisfied that it was never intended to be announced by this or any other court as a sound doctrine that a trial court exercises "a sound discretion," with no authority to interfere by a reviewing court, in granting a new trial for insufficiency of evidence to support the verdict when it was equiponderant (or nearly so), and the finding of the jury would be un- trial-discredoubtedly tion-equiponproper derant evidence.

-granting new

and sustainable if rendered either way. Clearly in that case there is an abuse of discretion within the rule, and the duty of the reviewing court to interfere by exercising its authority arises. A

contrary holding would lodge with the trial court the power to retain a case on the docket indefinitely, or until a jury could be found which would return a verdict in accordance with its conception of the facts, notwithstanding the evenly balanced condition of the testimony. Such a discretion, if possessed by the court, would not only be an unwarranted encroachment upon the proper and legitimate functions of the jury, but it would tend to delay the final disposition of causes, not to mention the arbitrary power with which it would vest trial courts. So that, howsoever much further the authority of this court may extend in such

cases, we feel that it may be safely said that when the evidence and proven circumstances are equiponderant in convincing effect it is an abuse of discretion by the trial court to set aside the verdict. However, in this case, as we have briefly attempted to show, the evidence upon the first trial was more convincing as to the genuineness of the paper in contest than that it was spurious.

It results, therefore, that the court erred in failing to sustain the motion on the last trial to reinstate the first verdict and render judgment thereon. Wherefore the judgment is reversed with directions to proceed in conformity with this opinion.

Ala.

This annotation is supplemental to other annotations on the same point in 6 A.L.R. 500, and 12 A.L.R. 212. Like its predecessors, its purpose is to collect cases showing the extent to which the appellate courts have themselves assumed to determine the genuineness of a disputed document. In Brown v. Welch (1923) 96 So. 610, the appellate court, upon an inspection of the original papers introduced in evidence containing the genuine signatures of the respective parties, and the will propounded for probate, came to the conclusion that the court below properly refused to admit the alleged will to probate.

In Straughan v. Bennett (1922) 153 Ark. 254, 240 S. W. 30, involving the validity of a mortgage, signed by mark, which the alleged mortgagor and his wife both testified that they did not execute, the wife testified that she could write a little and could write her name, and always wrote her own name when signing a deed, while on the other hand the notary before whom the mortgage was acknowledged testified as to its execution by her. It was held that the evidence did not preponderate against the finding of the chancellor that the mortgage was genuine.

In Re Newhall (1923) Cal. A.L.R., 214 Pac. 231, it was held that as there was evidence sufficing to support a verdict finding a will to have been entirely written, dated and signed in the handwriting of the testatrix, a judgment in that behalf would not be disturbed upon appeal, although the handwriting expert called by the contestant gave as his opinion that the changes and alterations in the will had been made by a third person.

In Sellers v. Kincaid (1922) 303 Ill. 216, 135 N. E. 429, the appellate court made its own comparison of the signature to a will with admittedly genuine signatures, and came to the con

clusion that the finding of the jury that such signature was not that of the decedent was against the weight of evidence. The court said: "As these [admittedly genuine signatures] have all been certified for examination on review, this court is not in the same position with reference to them as it is regarding the testimony of witnesses heard before the jury, but is in as good a position as was the jury to decide on a matter of comparison."

In Jennings v. Glover (1919) 214 Ill. App. 359, which involved a claim filed against the estate of a deceased person, based upon an alleged promissory note, the court declined to interfere with a verdict finding that the signature on the note was not that of the decedent, where witnesses testifying to its genuineness, two of whom were officers in a bank in which decedent had a checking account, one a former employee in decedent's store, and the other a person who had had business transactions with the decedent and had received checks from him, were opposed by seven witnesses, three of whom were officials in another bank in which decedent kept an account, two were formerly clerks in his store, and two were persons with whom he had done business, and by two witnesses who qualified as handwriting experts.

In State v. Wilson (1920) 189 Iowa, 1057, 179 N. W. 305, the appellate court declined to disturb a verdict finding that a signature was not genuine, notwithstanding the testimony of an expert that it was genuine, where the person whose signature it purported to be denied its genuineness, and a genuine signature was also in evidence so that comparison could be made by the jury.

were in the handwriting of the decedent, where twelve witnesses who were familiar with the handwriting and signature of the decedent testified positively that the notes were not written or signed by him, and two handwriting experts testified that the signatures on the notes were not, in their judgment, in the same handwriting as an admittedly genuine signature. The appellate court also made its own comparison of photographic copies of such signatures.

The reported case (STRODE V. STRODE, ante, 313) involves the authenticity of an alleged holographic will. A verdict finding it to be genuine had been set aside by the trial court and a new trial ordered. The appellate court, in considering the propriety of such action, made its own comparison of the standard papers containing testator's admittedly genuine handwriting with the paper in contest, without, however, being convinced that the discrepancies pointed out by an expert testifying for the contestant were sufficient to indicate that the alleged will was not genuine. The court also points out that, of the witnesses who testified in favor of the genuineness of the will, many had seen the decedent not only write his name, but had also seen him write other papers and documents, while a much less number of witnesses, who testified on the other side, had seen him do any writing, and perhaps none of them had seen him do more than write his name; and that aside from the handwriting evidence in the case, there were other circumstances pointing strongly to the genuineness of the contested paper. It accordingly comes to the conclusion that the court below erred in setting aside the verdict and granting a new trial.

to have signed it as surety, testified that after preparing the note he sent an employee with it. to the home of his father, and the signature was on it when it was returned, and he then thought that it was his father's signature; although some of the witnesses failed to state that they had seen the defendant write, or had seen writing admitted by him to be his.

In Hagan's Succession (1922) 150 La. 934, 91 So. 303, an appeal in a will contest in which the genuineness of an alleged holographic will giving all the property of the testatrix to her husband had been sustained in the court below, the appellate court reviewed the evidence, making its own comparison of the will with admittedly genuine specimens of the handwriting of the testatrix, and came to the conclusion that it was not written by her.

In Wadsworth's Succession (1922) - La., 92 So. 760, an appeal from a judgment declining to set aside the probate of an alleged will, the appellate court made its own comparison between admittedly genuine signatures of the decedent and that appended to the will, and reaffirmed its genuineness, which was also supported by the testimony of a disinterested eyewitness to its execution and the naturalness of the disposition made therein.

In Chillicothe Trust Co. v. French (1922) Mo. App. - 241 S. W. 984, it was held that the evidence justified a finding that the signature to the note sued on was genuine, notwithstanding the testimony of handwriting experts to the contrary. The court, however, reversed the judgment because of error in the instruction given the jury as to the effect to be given to such testimony.

In Re McDonough (1922) 201 App. Div. 203, 193 N. Y. Supp. 734, involving the genuineness of an alleged codicil, the court compared the handwriting and signature with genuine specimens of that of the testatrix, and expressed the opinion that it was not her handwriting, but that the handwriting of the codicil was strikingly 27 A.L.R.-21.

similar to that of the beneficiary thereunder.

--

Pa., 120

In Re Henry (1923) Atl. 454, it was held that the orphans' court, to which a will had been presented for probate, properly denied an issue to the common pleas on the question of forgery where its execution by the testatrix was proven by credible witnesses and the evidence to the contrary was merely opinion evidence, given by bank officials and handwriting experts. In further support of its decision the court said: "It may not be amiss to add that the weight of opinion evidence on a question of handwriting depends upon the cogency of the reasons given; here they do not appeal to us as convincing. As stated by Judge Gresham in Risley v. Indianapolis, B. & W. R. Co. (1877) 7 Biss. 408, Fed. Cas. No. 11,859: 'A variance in a signature is not necessarily proof of its being a forgery. Dissimilitude may be occasioned by a variety of circumstances, by the state of health and spirits of the writer, by the materials, by his position, or by his hurry or care.' Allowance must be made here for the circumstances under which the questioned signature was written; Mrs. Henry was eighty-three years of age, in feeble health, bereaved by the recent death of a son, afflicted with failing sight, and suffering from a broken left wrist, and, according to the evidence, handicapped by a defective pen. It is not, therefore, surprising that in attempting to write

the first name in full,-not her usual habit, she deviated from the line and omitted, but later inserted, the 'e,' or that she began so close to the seal that the last name ran into it, or that the pen was lifted from the paper at some unusual places, or that near the end of the signature there are signs of haste. All of these, to our mind, more suggestive of the infirm hand of age than the deft hand of crime; in other words, it seems too clumsy for a forgery. The signature resembles that of Mrs. Henry, and the evidence, taken as a whole, does not leave sufficient doubt about it to warrant the granting of an issue.”

are